Attorney J. Bradley Smith answering the question: “Can I be arrested without evidence against me?”

An important decision was handed down by the Supreme Court last week when the justices decided that police officers do not have the authority to stop and hold those who have already left a residence that they’ve come to search.

The case, about the limits of an officer’s ability to hold a possible suspect related to a search, was decided 6-3. Bailey v. U.S., forced the Court to consider the precedent set by an earlier case from 1981, Michigan v. Summers, which created the right for police officers to stop those in a residence while they are there to execute a search warrant. The Summers case allowed officers to temporarily hold those who were on the premises even if they did not have a specific reason to suspect them of having engaged in any illegal activities.
This idea of holding someone on the premises of a search was put to the test in the recent Bailey case which began in 2005. Officers in upstate New York stopped a man, Chunon Bailey, and attempted to hold him even though he was more than a mile away from the residence the officers had been sent to search. Officers who stopped the man found evidence that linked him to drugs and weapons later located in the house.

The Supreme Court heard the case and disagreed with prosecutors who argued the principle set forth in Summers ought to be extended to the facts of the present case. The justices instead decided that the distance, more than a mile away from the residence, was too great to give the police the power to hold someone they suspected of being connected to the house. Justice Kennedy said that the rationale for allowing such detentions disappears when suspects are so physically removed from the house in question.

Kennedy said that the matter is even more problematic in a case like Bailey’s where the detention took place so far away from the residence in question. The problem in those cases is that the governmental intrusion is even greater given that the person would be publicly detained and transported back to the premises where the search would be taking place. To those watching, it would appear as if the suspect had been arrested.

An especially strange aspect of the case is the way the justices divided on the opinion. Rather than a typical conservative/liberal split, the majority was made up of Kennedy, Roberts, Scalia, Ginsburg, Sotomayor and Kagan. The dissenting judges were two of the most conservative on the Court, Thomas and Alito, along with one of the most liberal, Breyer.